TMI Blog2024 (3) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision or order, but the Commissioner (Appeals) can condone the delay of 30 days after the expiry of the period of 60 days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the stipulated period of 60 days. The Supreme Court held that as the period upto which the prayer for condonation can be accepted is statutorily provided, the contention that section 5 of the Limitation Act, 1963 could be invoked to condone further delay after the expiry of 30 days cannot be accepted. The Supreme Court also observed that the appellate authority had no power to allow the appeal to be presented beyond the period of 30 days as was clear from the provisions of section 35 of the Central Excise Act. The period of limitation for filing the appeal before the Commissioner (Appeals) has to begin from 30.12.2018, on which date the appellant received the order dated 14.12.2018 passed by the Joint Commissioner. Though the letter dated 21.01.2019 said to have been sent by the Joint Commissioner to the learned counsel for the appellant has not been brought on record by the appellant, but what has been stated by the learned counsel for the appellant is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant but was filed even beyond the extended period of 30 days, which period alone could have been condoned by the Commissioner (Appeals). 2. The Commissioner (Appeals) has noted in the impugned order that the order dated 14.12.2018 passed by the Joint Commissioner was received by the appellant on 30.12.2018, but the appeal was filed before the Commissioner (Appeals) on 22.04.2019. 3. These facts stated by the Commissioner (Appeals) in the order are also borne out from the Memo of Appeal that was filed by the appellant before the Commissioner (Appeals). Against Serial No. 3 of Form CA-I, the appellant stated that the date of order assailed in appeal is 14.12.2018 and against Serial No. 5, the appellant stated that it received the said order on 30.12.2018. 4. It also transpires that the appellant had specifically stated in the Memo of Appeal filed before the Commissioner (Appeals) that the order that was being assailed in the appeal was the order dated 14.12.2018 passed by the Joint Commissioner. 5. Section 128 of the Customs Act 1962 [the Customs Act] deals with appeal to Commissioner (Appeals). It is reproduced below: 128. Appeal to Commissioner (Appeals) (1) Any person aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of 60 days. The appeal was not accompanied by any delay condonation application but appellant stated in the appeal that limitation should be counted from 22.02.2019, on which date the learned counsel for the appellant sent a reply dated 22.02.2019 to the letter dated 21.01.2019 sent by the Joint Commissioner to the learned counsel for the appellant. 8. The Commissioner (Appeals) dismissed the appeal by order dated 29.01.2020 for the reason that it was filed not only beyond the time limit of 60 days prescribed for filing the appeal, but was filed even beyond the extended period of 30 days that alone could be condoned. The observations are as follows: 5.1 Before going into the merit of the case, I would like to examine as to whether the basic conditions for filing the appeal have been fulfilled or not. I find that: (i) Date of receipt of the impugned order has been stated to be 30.12.2018, whereas the appeal has been filed on 22.04.2019. (ii) In the letters, dated 13.09.2019, 27.09.2019, 09.10.2019, 03.01.2020 and 15.01.2020, communicating personal hearing, the appellant was conveyed that the appeal appears to be barred by time by 2 months. xxxxxxxxxx 5.3 It is evident that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Memo of Appeal before the Tribunal: 3. Because the Ld. Commissioner did not consider that the Joint Commissioner deliberately did not consider the reply dated 12.12.2018 as it demolished the SCN as illegal on merits, facts and law and as also being malafide, mischievous and based on manipulated records. Limitation period for filing appeal could have started from the date of reply dated 22.01.2019 (should be 22.02.2019). 4. Because the Ld. Commissioner did not consider that the Ld. Joint Commissioner considered on 21.01.2019 the reply dated 12.12.2018 and that date of consideration of reply to SCN should have been relevant date of forming subjective satisfaction by the Ld. Joint Commissioner to pass the order. Since the appellant had given on 22.01.2019 (should be 22.02.2019) reply to the letter dated 21.01.2019 of Ld. Joint Commissioner, the relevant date for filing appeal could be 22.04.2019. The main point is that the Ld. Joint Commissioner deliberately did not consider the reply dated 12.12.2018 which could demolish the case of the department, she passed the ex-parte order showing ignorance about letter dated 12.12.2018 but alter as an excuse that the letter was received late ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the department have been considered. 16. The issue that arises for consideration in this appeal is whether the Commissioner (Appeals) had the power to condone any delay beyond the extended period of 30 days after the expiry of the initial period of 60 days. 17. This issue was examined at length by the Supreme Court in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur [2007 (12) TMI 11- Supreme Court]. Though the decision is in the context of section 35 of the Central Excise Act, 1944 [the Central Excise Act], but the provisions of section 128 of the Customs Act are pari materia with the provisions of section 35 of the Excise Act, as section 35 of the Central Excise Act also provides that an appeal can be filed before the Commissioner (Appeals) within 60 days from the date of communication of the decision or order, but the Commissioner (Appeals) can condone the delay of 30 days after the expiry of the period of 60 days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the stipulated period of 60 days. The Supreme Court held that as the period upto which the prayer for condonation can be accepted is statutorily pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f reference application under the unamended section 35H (1) of the Central Excise Act, 1944 beyond the period prescribed by applying section 5 of the Limitation Act, 1963. It is in this context that the Supreme Court observed: 19. As pointed out earlier, the language used in Sections 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el of appellant, however, is that the period of 60 days for filing the appeal before the Commissioner (Appeals) would commence from 22.02.2019, in which case, the appeal that was filed on 22.04.2019 would be within 60 days and, therefore, not barred by limitation. 22. It is not possible to accept this contention of the learned counsel for the appellant. As noticed above, the period of limitation for filing the appeal before the Commissioner (Appeals) has to begin from 30.12.2018, on which date the appellant received the order dated 14.12.2018 passed by the Joint Commissioner. Though the letter dated 21.01.2019 said to have been sent by the Joint Commissioner to the learned counsel for the appellant has not been brought on record by the appellant, but what has been stated by the learned counsel for the appellant is that the said letter informed the learned counsel that any communication from the appellant received after 14.12.2018, on which date the Joint Commissioner passed the order, could not have been considered in the impugned order. It is not possible to accept the contention of the learned counsel for the appellant that consideration of the letter dated 12.12.2018 by the Join ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
